Plaintiffs brought suit alleging that the defendant discharged them from employment in violation of the terms of a collective bargaining agreement. After a pretrial conference, a magistrate recommended dismissing the plaintiffs' complaint because the statute of limitations had expired and, on a alternative ground, that the complaint failed to allege the plaintiffs' union had breached its duty of fair representation in connection with the plaintiffs' grievances. The district judge agreed and dismissed the complaint with prejudice.

The magistrate reasoned that the statute of limitations began to accrue on January 13, 1983, when the union refused to demand arbitration with the employer. plaintiffs' complaint was filed six months and sixteen days later. Applying the six-month period mandated in DelCostello v. International Brotherhood of Teamsters, 462 U.S. 151 (1983), the magistrate concluded that the suit was barred.

Plaintiffs disputed the magistrate's factual conclusion that the statute of limitations began to accrue on january 13, 1983. They filed affidavits asserting that the union continued to negotiate with the company after that date. Plaintiffs also introduced letters from their counsel to the union in March 1983, inquiring about the progress of arbitration.

The sworn allegations presented the magistrate filed his report, but before the district judge acted on it, raised material issues of fact. We conclude that in those circumstances it was error to enter summary judgment on the statute of limitations defense.

The district court also erred in denying plaintiffs the opportunity to amend their complaint to allege the union's failure to properly represent plaintiffs. It is questionable that plaintiffs need amend their complaint since the duty of fair representation issue is fairly raised in the pretrial report. See Fed.R.Civ.P. 16(e); Basista v. Weir, 340 F.2d 74, 85 (3d Cir. 1965). In any event, the defendant cannot now argue that it would be surprised or prejudiced by allowing the amendment. Defendant included the matter in its pleadings and also caused it to be inserted in the pretrial report. In these circumstances, it was error to deny plaintiffs the right to amend their complaint and on that basis to dismiss the suit.

Nothing in this opinion shall be construed in any way as a reflection of the panel's view on the merits of this case.

Accordingly, the order of the district court will be vacated and the case will be remanded ...

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